FEDERAL COURT OF AUSTRALIA

McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 653

ORDERS

THE COURT ORDERS THAT:

1.    The application for an interlocutory injunction is refused.

2.    The appellant do pay the respondent's costs, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLVIN J:

1    On the evening of 8 May 2018 I heard an application by Mr McLachlan for an urgent interlocutory injunction to restrain the Assistant Minister from removing him from Australia. He said that he had been given notice on 30 April 2018 that he was to be removed on 9 May 2018. After hearing from Mr McLachlan and counsel for the Assistant Minister appearing at short notice, I declined the application. These are my reasons for doing so.

2    Mr McLachlan's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) on 10 February 2015. At that time he was serving a term of imprisonment. He made a request for the cancellation to be revoked. On 23 February 2017, the Assistant Minister (Parliamentary Secretary) decided not to revoke the cancellation. An application for an extension of time and to review the decision of the Assistant Minister was brought in this Court on 29 May 2017.

3    On 20 February 2018, McKerracher J dismissed the application for an extension: McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109. His Honour found that Mr McLachlan had not provided any satisfactory explanation for the full extent of the delay of 60 days beyond the 35 day statutory limit for filing the application: at [29]. He also found that the proposed grounds of review had no prospects of success: at [38], [42].

4    On 13 April 2018, Mr McLachlan lodged an application for an extension of time in which to appeal the decision of McKerracher J. He said that he had not been given a copy of the decision when it was delivered and had found it on the internet. He said that he was in detention on Christmas Island and his email address did not work there. Though lodged on 13 April 2018, it is dated 28 March 2018. For the purposes of the urgent application for relief, I was willing to accept that there was an explanation for the delay that might be found to be adequate when the application for an extension of time to appeal came to be determined.

5    However, in response to my inquiries, Mr McLachlan was not able to identify any matter concerning the delay in filing the original application for review or his grounds in that application that had not been considered by McKerracher J. As to the decision of the Assistant Minister, he said that the decision did not consider the effects of his brother passing away and the impact upon his mother, but those matters were addressed in the reasons of the Assistant Minister. He did not identify any matter that was not accurately stated in the decision of the Assistant Minister or McKerracher J.

6    In his application for an extension of time to appeal in these proceedings, Mr McLachlan stated that the grounds of appeal were stated in his affidavit. The affidavit raised three matters.

7    First it said that he suffered childhood abuse in New Zealand and that when he arrived in Australia it was organised by the police because of his abuse. In oral submissions to me, he said that his offending as a young person had been understood by those dealing with him to be affected by his childhood abuse and his mental state and that was a matter to be taken into account. Therefore, I took the complaint to be that the Minister should have taken the same approach.

8    Second, it was said that there was not enough consideration concerning his formative years in Australia and the hardship he had endured 'through his teens'.

9    Third, it was said that there were compassionate grounds and the Assistant Minister did not consider the impact of his younger brother's death and how it affected him and his mother. As I have noted, this is a matter that was specifically addressed by the Assistant Minister.

10    The three matters raised go to the merits of the decision made by the Assistant Minister and do not identify error in the reasons of McKerracher J.

11    I considered both the reasons of the Assistant Minister and the decision of McKerracher J. I could not identify any respect in which there were arguable grounds which Mr McLachlan might advance on appeal.

12    Further, this was not a case where the Assistant Minister had acted without any real notice such that some form of interim relief may have been appropriate to enable an applicant to consider and formulate grounds: cf ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363 at [31]-[35].

13    Mr McLachlan had already brought proceedings almost a year ago in which he had an opportunity to articulate whatever grounds he might raise in respect of an application to review the decision of the Assistant Minister. Further, he had formulated his grounds in support of his application for an extension of time to appeal when it was brought on 13 April 2018. After that, on 30 April 2018, he became aware of the Assistant Minister's intention to remove him from Australia.

14    In those circumstances, and for those reasons, I concluded that there was no arguable case to support the grant of injunctive relief and made orders dismissing the application with costs.

Associate:    

Dated:    9 May 2018